Absences due to Protests

Wednesday March 8th was International Women’s Day, a day officially recognized every year to commemorate women’s rights globally. This year, an additional tag was added to this occasion called A Day without Women, an organized strike day encouraging women across the globe to strike in solidarity and recognition over “the enormous value that women of all backgrounds add to our socio-economic system—while receiving lower wages and experiencing greater inequities, vulnerability to discrimination, sexual harassment, and job insecurity,” according to the Women’s March web page.

With women comprising nearly half of the U.S. workforce (Fortune), the possibility that the protests and absences for this reason and cause may have impacted productivity and operational effectiveness in offices and businesses in the states.

Mass demonstrations were held that coincided with International Women’s Day. Here in Seattle, a rally was held in the evening in Westlake Park where hundreds gathered in support of women’s rights. A Day without Women was aimed to start or continue discussions across the board about gender equality and promoting family-friendly policies in the workplace related to paid leave and scheduling flexibility.

Many employers question whether employees are protected if they call out absent from work or take an unscheduled unpaid day off to participate in these political protests.

Are such absences protected and considered concerted activity as outlined under the National Labor Relations Act (NLRA)?

Technically, the NLRA only protects employees, whether union or non-union, who engage in “lawful concerted activity for purposes of mutual aid and protection” or when they seek to initiate an action about work-related issues, or bring complaints about the workplace to management. If an employee is absent for reasons of a walk-out or “strike” day, and their protest is more broadly based government action not aimed at specific workplace issues, they are generally not afforded the same protections under the NLRA.

However, it is recommended that an employer have open dialogue with your employees before jumping to conclusions or making decisions that could affect employment of an employee. Certainly it is the right of an employer to have a legitimate interest in maintaining high levels of operational productivity and to enforce policies on attendance. However, there are certain circumstances that a manager may want to refrain from disciplining employees for failing to attend work.

If the employee is out due to general “protests,” it may not be enough under the NLRA to protect their rights, and the employer may enforce their policies. However, if the reason is expressly tied to working condition or gender equality issues, the employer may want to give the benefit of the doubt and avoid any discipline normally tied to absences.

An employer is encouraged to first have a documented attendance policy in place and follow those guidelines consistently and without bias. The rules should be enforced for each employee, without discrimination of their right or reason for the absence. Consistency in enforcement is key, as is seeking HR support or legal counsel related to this grey subject to mitigate any potential risk to your business.